Alvarado: Insufficient evidence to support public authority instruction

In U.S. v. Alvarado, No. 13-14843 (Dec. 11, 2015), the Court affirmed the conviction and 360-month sentence of a defendant who claimed he was working as a government informant when he engaged a drug trafficking informant. The Court held that Alvarado failed to offer sufficient evidence to support giving the jury a “public authority defense” jury instruction. The Court noted that some confusion in its caselaw regarding how much evidence a defendant must offer to obtain this instruction, but found no need to harmonize the standards because Alvarado failed to offer any evidence that a law enforcement official authorized his criminal conduct. The Court noted the defendant’s “radio silence” with law enforcement during periods when he was meeting with drug traffickers. Moreover, his written agreements with law enforcement agencies prohibited him from taking actions not authorized by his handlers. Though not adhering to any formalistic requirements about what constitutes “authorization,” the Court rejected Alvarado’s argument that he reasonably relied on his original informant role for participation in subsequent crimes. The Court also noted that the jury rejected the “innocent intent” defense. Turning to sentencing, the Court rejected Alvarado’s unreasonableness challenge to his within-Guidelines term of incarceration. The Court noted that his co-conspirators received lesser sentences, but admitted guilt.